Gene Fidell has called our attention to this piece by Marcia Coyle in Blog of Legal Times.

The transcript of the Equal Justice for Our Military markup is now available here.  The consideration of H.R. 569 runs from pages 12 to 29 of the transcript.  The voice vote appears on pages 75-76.

Here’s a recap with some editorial commentary.  [Disclosure:  I testified in favor of the bill at the subcommittee hearing.]

Rep. Hank Johnson (D-Ga.), the chairman of the subcommittee that considered the bill, began with a description of the legislation and an equity argument for passing the legislation, emphasizing the disparity in the government’s and a servicemember’s ability to bring a case within the Supreme Court’s cert jurisdiction.  While noting that cases that would become eligible for Supreme Court review under the bill would very rarely receive a cert grant, he argued that the same is true for other cases already within the Supreme Court’s cert jurisdiction.  Rep. Johnson also noted that the Cox Commission report had endorsed the bill, as had the ABA and other public interest groups.

Rep. Lamar Smith (R-Tex.), the committee’s Ranking Member, then spoke against the bill. (Rep. Smith spoke on the House floor in 2008 against that year’s version of H.R. 569, noting then-DOD General Counsel William J. Haynes II’s opposition to the bill.)  At the markup, Ranking Member Smith first attacked the bill’s origin, arguing that “this bill was introduced because a single individual was unhappy with the way he had been treated by the military justice system.”  He then criticized the Obama Administration for not sending a witness to the subcommittee’s hearing on the bill.  He argued that this should “be construed as meaning the administration as the least has serious concerns about the legislation.”  He noted that the Defense Department opposed similar legislation in the previous Congress.  He expressed concern about DOD’s obligation to provide counsel to prepare the cert petitions that would be authorized by the bill, suggesting that if the bill “made clear that the military’s obligation to provide defense counsel ended at the appellate stage so that convicted service members who wanted to seek Supreme Court review had to secure their own counsel, the burdens might be eased.”  He also expressed concern for the increased workload that the Supreme Court and DOJ would experience if the bill were enacted.  He then dropped the H-bomb:  “The Supreme Court and our military justice system do not need to [expend] scarce resources on expanded appellate rights for convicted service members like Major Hasan, who in the future might well seek to take advantage of H.R. 569.”

Of course, Major Hasan is likely to qualify for Supreme Court review without any help from H.R. 569.  If he is ultimately sentenced to death and that sentence is affirmed by ACCA, then the case will fall within CAAF’s automatic jurisdiction, resulting in cert jurisdiction as well.  If Major Hasan is sentenced to life or LWOP and ACCA affirms that outcome, the case would fall within CAAF’s practice of granting and summarily affirming in long-term confinement cases if it doesn’t grant review of an issue.  And, of course, if ACCA reverses, then the Judge Advocate General of the Army can certify the case to CAAF, which would bring it within the Supremes’ cert jurisdiction.  So MAJ Hasan is an unlikely poster child for opposing this bill.  [Yes, I know MAJ Hasan is presumed not guilty.  If he's ultimately acquitted, then he won't need H.R. 569.]

Ranking Member Smith concluded his remarks by observing:  “I hope this is the end of the bill until we at least get some indication of support from the administration or from the Department of Defense or from the Justice Department, none of which has been forthcoming to date.”

Rep. Johnson then addressed Ranking Member Smith’s arguments, noting that the CBO had estimated that the bill would cost only $1 million per year.  [In reality, as I've previously discussed, the bill would almost certainly actually cost far less.]

Rep. Howard Coble (R-N.C.), the Ranking Member of the subcommittee that considered the bill, spoke next.  As he did at the hearing, Rep. Coble criticized the Obama Administration for not taking a position on the bill.  He also argued that “H.R. 569 still neglects to provide safeguards to prevent abuse.”  In concluding his remarks in opposition, Rep. Coble argued that “[a]t a minimum I think the administration and Congress should provide appropriate resources to ensure that the military justice system is not detrimentally impacted and to ensure, Mr. Chairman, that appellants do not abuse this new appellate jurisdiction.”  I honestly don’t know what sort of potential “abuse” Rep. Coble is concerned about.

Rep. Tom Rooney (R-Fla.) spoke next.  Rep. Rooney, who served on active duty as an Army judge advocate, characterized the bill as an insult to the military justice system.  He argued that the bill creates “an inference that we [clearly meaning Army JAG Corps members] have done something wrong.  I take serious offense to it, and I urge people to vote no on this bill.”  He also faulted the bill’s title for “impl[ying] an assumption of error or possible wrongdoing or even malfeasance by not only the JAG Corps, but the Department of Defense and the Army or any of the branches.”

He then proceeded to attack Norbert Basil MacLean III, though not by name, arguing that the bill was brought at the behest of “one gentleman who is now an Australian citizen who pled guilty in his court martial for writing bad checks and then sometime thereafter changed his mind.”

Rep. Rooney touted his military justice expertise, noting that he used to teach military law at West Point.  Yet, incongruously, he offered an inaccurate description of the military appellate system.  He stated, “Every court martial is automatically-automatically- reviewed by an appeals court from that individual branch.”  I wish that were the case.  But, as we know, about 20% of all GCM and SPCM convictions are never reviewed by any appeals court because they result in a subjurisdictional sentence.  He continued, “Then if the CAAF determines . . . that there is a serious issue of constitutionality a writ of cert will be issued to the Supreme Court.”  Uhm, not even close. 

Rep. Rooney observed that the “Supreme Court has said time and time again that the military is a separate society.”  He then read an excerpt from Goldman v. Weinberger, 475 U.S. 503 (1986), about the great deference that the Supreme Court must give “to the professional judgment of the military authorities concerning the relative importance of a particular military interest.”  The Goldman opinion seems like something of an odd vehicle for opposing the bill considering that in 1987, Congress passed a bill to reverse the very Air Force reg that the Supremes upheld in Goldman.  Pub. L. No. 100-180 (codified at 10 U.S.C. § 774).

Returning to the task of flogging NBM3, Rep. Rooney argued that CAAF’s judges “take these cases and they run them up to the Supreme Court on a case-by-case basis . . . that filters out the cases which may . . . crowd the docket of the Supreme Court to where it is truly important constitutional questions get there.  And that does not include writing bad checks.”  As one of the counsel in Weiss, I’m a bit amused by that statement, considering that systemic (though ultimately unsuccessful) challenge to the military justice system arose from a special court-martial conviction for shoplifting a $9 racquetball glove.

Rep. Louie Gohmert (R-Tex.) was the final member of the committee to speak about the bill.  He began by noting that servicemembers don’t have the same rights as civilians and discussed the necessity of instant obedience to orders.   Rep. Gohmert then argued, “Some people say those in Guantanamo Bay need to have the same rights as everybody else, an American citizen in order for that to be constitutional.  If the military doesn’t have the same rights, they should not have the same rights.”  This seems an odd argument, considering that a Guantanamo Bay detainee tried by a military commission or in U.S. district court would ultimately have a right to seek cert from the Supremes if convicted at the trial level and unsuccessful on appeal while a servicemember has the right to seek cert only if CAAF grants review.  So U.S. servicemembers’ access to the Supreme Court is not only less than that of defendants in state or federal criminal proceedings, but actually less than that of alien unlawful enemy combatants.

After voting in favor of a resolution to impeach U.S. District Judge Thomas Porteous, Jr., the committee by voice vote favorably reported H.R. 569 as amended by the subcommittee to the full House.

The House Judiciary Committee today favorably reported the Equal Justice for Our Military Act to the full House by voice vote.

I was able to listen to some, but not all, of the markup over my laptop.  During the part I was able to hear, four GOP members spoke against the bill.  Rep. Lamar Smith (R-Tex), the committee’s Ranking Member, and Rep. Coble (R-N.C.), the Ranking Member of the subcommittee that considered the bill, both noted that the Obama Administration had taken no position on the bill.  Ranking Member Smith emphasized that the previous Administration had opposed the bill.  Rep. Rooney (R-Fla.), who as an Army judge advocate had taught at West Point, characterized the bill as an insult to the military justice system and, though I don’t think he mentioned his name, attacked Norbert Basil MacLean III–the moving force behind the bill.  Rep. Gohmert (R-Tex.) also criticized the bill, including (if memory serves) observing that terrorists shouldn’t receive more rights than U.S. servicemembers — an inapt argument considering that under the Military Commissions Act, any alien unlawful enemy combatant convicted by a military commission can ultimately seek Supreme Court review while U.S. servicemembers convicted by a court-martial can seek direct Supreme Court review only if CAAF grants review.

Once the transcript of the markup session is available, I’ll post more.

The full House Judiciary Committee has scheduled a markup of H.R. 569, the Equal Jutice for Our Military Act to expand the Supremes’ cert jurisdiction over military justice cases, for 1015 tomorrow.  The bill has previously been scheduled for markup but then been delayed at least three times.  But tomorrow’s markup schedule lists H.R. 569 first, giving us hope that the markup will actually occur tomorrow.

H.R. 569, the Equal Justice for Our Military Act, was scheduled to be the third bill marked up by the House Judiciary Committee today.  But the committee ran out of time.  We’ll be on the alert for a rescheduled markup session.

Here is a link to the pre-markup memo on the Equal Justice for Our Military Act of 2009.  When the markup report is posted I’ll update this post with a link.  Here is the page where the report gets posted.

Anyone know the secret on how to view Judiciary Committee webcasts?  I couldn’t get the link on the Committee markup page, here, to work.

Update:

Norbert Basil MacLean III: The House Judiciary Committee didn’t get to HR 569 (or HR 3190) because of a two-hours-plus discussion on the first item on the agenda, which was a resolution pertaining to detainees at Guantanamo Bay. Thus HR 569 (and HR 3190) were held over to the next markup which may occur next Wednesday.

Here’s a letter that the ABA has sent to the House Judiciary Committee on the eve of the scheduled markup of the Equal Justice for Our Military Act, H.R. 569.  The letter explains why the ABA supports the bill.

As NBM3 reports on his blog here, H.R. 569, the Equal Justice for Our Military Act, is one of three bills scheduled to be marked up by the full House Judiciary Committee on Wednesday, starting at 1000.  A webcast of the markup session should be available here.  The bill would expand the Supreme Court’s certiorari jurisdiction to reach cases where CAAF denies a petition for review or denies relief in an extraordinary relief case.

The House Judiciary Committee’s markup of two bills ran long, so the committee didn’t reach the Equal Justice for Our Military Act, H.R. 569, today.  I’ll provide info about the markup’s rescheduling when it becomes available.

The Equal Justice for Our Military Act, H.R. 569, is still scheduled to be one of four bills marked up tomorrow during a full House Judiciary Committee session starting at 1015.  Video of the markup should be available here.

The House Judiciary Committee’s web site lists a full committee markup on H.R. 569, the Equal Justice for Our Military Act of 2009, on Wednesday.  NBM3 announced the markup on his blog, here.

NBM3 is reporting on his blog here that Senator Feinstein’s proposed amendment to the Military Construction and Veterans Affairs Appropriations Act for Fiscal Year 2010 to expand the Supremes’ cert jurisidction over military justice cases won’t proceed to a vote.  It sounds like it is considered not germane to the bill it seeks to amend.  We previously discussed the amendment here.

On 11 June 2009, the House Judiciary Committee’s Subcommittee on Courts and Competition Policy held a hearing on H.R. 569, which would expand the Supermes’ cert jurisdiction to reach cases in which CAAF denied review as well as those that CAAF actually heard.  We discussed that hearing here.  On 30 July, the subcommittee marked up the bill and then forwarded it to the full House Judiciary Committee by voice vote.  Since then — nothing.  Until this week, that is. 

NBM3 notes here on his blog that on Monday, Senator Feinstein offered an amendment to an amendment of the Military Construction and Veterans Affairs Appropriations Act for Fiscal Year 2010 that would expand the Supremes’ cert jurisdiction to reach cases in which CAAF denies review.  The pages from the Congressional Record containing the proposed amendment are available here.  The amendment’s language is identical to S. 357, the Equal Justice for United States Military Personnel Act of 2009, which Senator Feinstein introduced in January.  That language, however, differs to some extent from that in the marked up version of H.R. 569.

The second recommendation of the Cox Commission II report (which is available here) is to “[e]nact the Equal Justice for Our Military Act of 2009, now pending in the House of Representatives.”

We’ve previously discussed various provisions in this fiscal year’s DOD Authorization Act.  Yesterday, the Senate passed the conference committee’s version of the bill, which had already been passed by the House.  The bill now goes to President Obama, who is expected to sign it.  Scuttlebutt is he’s likely to sign the bill on Wednesday.

p.s.  — ther bill also includes a 3.4% military pay raise.

Section 567 of the conference committee’s version of the FY 2010 DOD Authorization Act givesSECDEF 180 days to submit to HASC and SASC a “revised plan for the implementation of policies aimed at preventing and responding effectively to sexual assaults involving members of the Armed Forces.”  The bill contains lengthy requirements for this revised implementation plan.  I’ll examine those requirements tomorrow night, unless one of my CAAFlog colleagues beats me to it.